The burden of proving the due execution of a promissory note lies on the plaintiff, even if the defendants admit their signatures, and the presumption under Sections 118 and 139 of the Negotiable Instruments Act can be rebutted by the defendants through the circumstances brought out during the examination of the plaintiff's witnesses.

Dated this the 3rd day of June, 2024 This Second Appeal has been preferred by the respondent in AS No.155/2002 on the file of District Court, Palakkad, who is the plaintiff in OS. No.344/1996 on the file of Munsiff Court, Chittur, against the judgment and decree allowing the appeal and dismissing the suit. For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.

2. According to the plaintiff, the defendants 1 and 2, who are mother and son, borrowed a sum of Rs.40,000/- from him on 10.8.1993, after executing a joint promissory note promising to repay the amount with interest. In spite of demand, the defendants failed to repay the amount and hence the suit.

3. The defendants denied having any money transaction with the plaintiff. According to them, they have borrowed an amount of R.20,000/- from one Mohammed, S/o.Vellakutty in 1993, after getting their signature on some blank paper with revenue stamp affixed thereon. They had repaid a sum of Rs.10,000/- and only a balance amount of Rs.10,000/- is due to Muhammed. The plaint promissory note is a forged one.

4. After evaluating the available evidence, the trial court decreed the suit. However, the First Appellate Court reversed the findings of the trial court and dismissed the suit. Aggrieved by the above judgment and decree of the First Appellate Court, the plaintiff preferred this Second Appeal.

5. At the time of admission, the following substantial questions of law were framed:

A) Is not the lower appellate court in error in upsetting the well considered judgment of the trial court? Is not the exercise of the appellate jurisdiction by the lower appellate court in the instant case excessive and irregular, especially when absolutely nothing has been stated how the judgment of the trial court is erroneous and unsustainable? B) Is it not the defendants' burden to adduce rebuttal evidence when the plaintiff has proved the execution of the promissory note in discharge of their preliminary burden? In the absence of such rebuttal evidence is the lower appellate court justified in non suiting the plaintiff in a suit based on promissory note?”

6. Both sides were heard in detail about the above substantial questions of law. The case of the plaintiff is that the defendants 1 and 2 borrowed a sum of Rs.40,000/- from them after executing a joint promissory note, promising to repay the amount on demand.

The defendants totally denied the claim of the plaintiff. According to them, they had borrowed an amount of Rs.20,000/- from one Mohammed and out of which Rs.10,000/- was repaid. At the time of the loan, they have signed on some blank papers with revenue stamp affixed thereon, which might have been misused by the plaintiff for fabricating a promissory note, for filing this suit.

7. Relying upon the decision of the Hon'ble Supreme Court in Hiten P. Dalal v. Bratindranath Banerjee [2001 KHC 1310], learned counsel for the plaintiff would argue that once the plaintiff proves execution of promissory note the presumptions under section 118 and 139 of the Negotiable Instruments Act comes into play and thereafter it is the burden of the defendants to rebut those presumptions. Since in this case, I have found that the plaintiff has not succeeded in proving due execution of Exhibit B1 promissory note and as such those presumptions are not available in favour of the plaintiff.

8. The learned counsel for the defendants would argue that mere admission of signature does not amount to admission of execution of promissory note and even in such circumstances, it is the burden of the plaintiff to prove the due execution of promissory note. In support of the above argument, he has relied upon the decisions in Seithammarakkath Mammad v. Koyommatath Mammad [ 1957 KHC 65 ] and Velayudhan v. Velayudhan [ 2001 KHC 113 ].

9. In the decision in Velayudhan (supra), a Division Bench of this court in paragraph 9 held that:

9. To sign means to affix the signature. Bu